Mississippi Supreme Court, 1943

Gabbert v. Treadaway

Mississippi Supreme Court · Decided April 26, 1943 · Alexander

13 So. 2d 157; 194 Miss. 435; 1943 Miss. LEXIS 96 (Southern Reporter, Second Series)

Counsel

Herbert Holmes, of Senatobia, for appellants. Damages recovered in any case must be shown with reasonable certainty, both as to their nature and in respect to cause from which they proceed. S.H. Kress Co. v. Sharp, 156 Miss. 693 , 126 So. 650 . The phrase "scope of the employment," adopted by the courts for the purpose of determining a master's liability for the acts of his servants, has no fixed legal or technical meaning; and the ultimate question is whether it is just that the loss resulting from the servant's acts should be considered one of the normal risks of the business in which the servant is employed, which that business should bear. Loper v. Yazoo M.V.R. Co., 166 Miss. 79 , 145 So. 743 . A master clearly cannot be held responsible for a tort committed in furtherance of his business, unless it is shown to have also been committed in the course of the appointed duties of the tort-feasor. Hand v. Industrial Life Health Ins. Co., 174 Miss. 822 , 165 So. 616 ; Miller v. Teche Lines, Inc., 175 Miss. 351 , 167 So. 52 ; Marlowe v. Bland, 154 N.C. 140 , 69 S.E. 752 ; Forzen v. Heard, 20 N.D. 42 , 126 N.W. 224; Wilson v. Peverly, 2 N.H. 548 ; Andrews v. Green, 62 N.H. 436 ; 6 LaBatt's Master Servant (2 Ed.), p. 6704; 11 R.C.L. 942, 945. Instruction No. 4 for plaintiff is an incorrect statement of the law and evidently the jury was misled by same. It says, in effect, that the master is liable for everything that his servant does, whether it is in the scope of his authority or whether it has any relation whatever to the business of the master, and it leaves out entirely the question as to whether it is just that the loss resulting from the servant's act should be considered one of the normal risks of the business in which the servant is employed, which that business should bear. J.F. Dean, of Senatobia, for appellee. Every fact was resolved by the jury in favor of appellee and this court will not disturb their finding of fact. This leaves only the question of erroneous instructions. The only complaint is as to instruction No. 4. This instruction has every qualification required by law which has to be believed from the evidence to make the master liable, even if taken by itself, but when read with other instructions for both appellee and appellant the jury could not be misled. Richberger v. American Express Co., 73 Miss. 161 , 18 So. 922; Rivers v. Yazoo M.V.R. Co., 90 Miss. 196 , 43 So. 471; 2 C.J. 848. The court erred in not adding the statutory penalty of $150 to the verdict of the jury for $350 for actual damages, or in not retiring the jury to correct or explain its verdict. This verdict is exactly like that of the jury in Wilson v. Yazoo M.V.R. Co., 192 Miss. 424 , 6 So.2d 313 , where the court said that the finding of actual damage by the jury automatically added the penalty as provided by the statute and since the lower court did not add it, the Supreme Court would add the statutory penalty. Argued orally by Herbert Holmes, for appellants, and by J.F. Dean, for appellee.

Opinion of the Court

Alexander, J.,

delivered tbe opinion of tbe court.

Nabors was employed by G-abbert as farm manager, and upon tbe occasion here involved, be was, pursuant to Gabbert’s directions, engaged in assigning or issuing to tenants tbeir respective land allotments. While so engaged, one Higginbotham, a prospective tenant, in discussing tbe character of tbe land, said to Nabors “I will never get a plow in tbis. Have you got a match1?” The tenant testified that be referred to tbe amount of grass *439 on the land and the difficulty of plowing it unless it was burned off. Nabors handed him a match and the witness lighted the grass. This evidence was not corroborated completely by Nabors. The jury, however, were warranted in concluding that Nabors’ conduct was sufficient to constitute him a participant in the act of burning, especially in view of a second attempt in his presence and with his knowledge and consent to set another fire. The first fire spread and the jury was warranted in finding that it spread to appellee’s land and caused damage to a number of small pine trees which had been set out thereon.

The peremptory instruction exonerating Gabbert ought to have been granted. In the light of the record, we find no substantial evidence upon which the jury could have found that Nabors was, in respect to the act causing damage, acting within the scope of his employment and in furtherance of his employer’s business. Marlowe v. Bland, 154 N. C. 140, 69 S. E. 752, 47 L. R. A. (N. S.) 1116; Wilson v. Peverly, 2 N. H. 548; Andrews v. Green, 62 N. H. 436. The lands had never been burned, and it was shown that such burning was not incidental to nor within the scope of the duties Nabors was employed to perform, nor those in which he was on the occasion engaged. Miller v. Teche Lines, Inc., 175 Miss. 351, 167 So. 52.

Suit was brought for damage to both pine and locust trees and to a fence. Plaintiff also demanded the statutory penalty of $150 under Code 1930, Section 3422.

The damage shown by the evidence was far from definite. It does not appear with reasonable certainty that any locust trees were destroyed, and the only accurate count of pine trees lost does not exceed sixty-nine. Their valuation was. placed at ten cents each. Neither the ownership of the fence, nor the extent of the damage thereto, was sufficiently shown. The judgment of $350 could be explained therefore only as representing the $150 penalty and an estimate of $200 for actual damage. *440 The plaintiff’s instruction number one required the jury to add such penalty if any actual damage by the fire was found to have resulted from defendant’s negligence. Such instruction was correct in principle. Wilson v. Yazoo & M. Y. R. Co., 192 Miss. 424, 6 So. (2d) 313.

The foregoing considerations are advanced, not as controlling bases for a reversal here, but for the guidance of the parties in view of the necessity for remanding the case on the following grounds. All of the plaintiff’s instructions involve the liability of both G-abbert and Nabors. There are no separate instructions applying solely to the negligence of Nabors, which, in view of the non-liability of Gabbert, was the only proper defendant. The responsibility of Gabbert under the doctrine of respondeat superior was stressed in all these instructions except the first, above referred to. Nabor’s responsibility, if any, was personal and direct and should not have been linked with any supposed liability of his employer. Thus, the liability of Nabors was so integrated with the liability of Gabbert that the jury was given no satisfactory or adequate standard whereby the liability of the former was to be adjudged. The status of Nabors as the supposed agent of Gabbert dominated all the instructions, and the liability of the other was made to stand or fall with any verdict against the landowner.

. It is clear that justice requires a new trial upon the sole liability of Nabors, unaffected by any considerations except those applying to his acts in an individual capacity. The uncertainty as to the extent of plaintiff’s damages strengthens our conclusion that a new trial would alone meet the ends of justice.

Appellee assigns on cross-appeal that the alleged inadequacy of the verdict must be construed as excluding a finding of the statutory penalty. We are compelled to take the opposite view, and to assume that the jury obeyed the direction of plaintiff’s first instruction. Illinois Central Railroad Co. v. Woods, 191 Miss. 628, 3 So. (2d) 826.

Reversed and remanded.

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